Smeda v Speedy Hire Centres Ltd [1993] UKEAT 751_92_0707

EAT
Smeda v Speedy Hire Centres Ltd
[1993] UKEAT 751_92_0707 · 1993-07-07
MR JUSTICE TUCKEY: This is an appeal by Mr Smeda who was the Applicant before the Industrial Tribunal at Liverpool on 12 June 1992. Following that hearing the Tribunal reached the unanimous decision that Mr Smeda's complaint that he had been discriminated against under the Race Relations Act 1976 was dismissed.The short facts giving rise to the complaint are that on 1 July 1991 Mr Smeda was introduced to the Managing Director of the Respondents, Speedy Hire Centres Ltd. In the course of the introduction Mr Smeda alleged that he explained that he could not shake hands because he had oil and dirt on his hands but he alleged Mr Brindle took hold of him anyway and rubbed his skin saying in a loud voice "this does not come off" and laughed loudly.Mr Smeda gave evidence before the Tribunal and he called a witness on his behalf. Mr Brindle gave evidence and called one witness who was present at the time of the introduction namely a Mr Nixon. In their Decision the Tribunal say as follows:
"There was a degree of conflict between the evidence given by the applicant and that which was given by two of the respondents' witnesses, namely Mr Brindle and Mr Nixon. Having heard the applicant and the above-mentioned two witnesses give their evidence, and having observed their demeanour in the witness box we preferred, wherever there was conflict, the evidence of Mr Brindle and Mr Nixon to that of the applicant."
They then set out their findings of fact referring to the conversation and conclude their decision as follows:
"Having carefully considered the evidence given in this case and the facts which we have found proved on that evidence we were completely satisfied that Mr Brindle did not when the applicant indicated he could not shake hands with him as his hands were dirty take hold of his hand, rub his skin and say in a joking manner "This does not come off". We were satisfied that what had actually taken place was that Mr Brindle, as is his normal practice when meeting a new employee or trainee for the first time, attempted to shake his hand and that the applicant had indicated that he could not do so because his hands were dirty. However Mr Brindle had then told him not to worry about that as he was used to working in dirty conditions, had held out his hand again, took hold of the applicant's hand and then placed his left hand on top of the applicant's hand and said to him "Don't worry, it will wash off" referring to any dirt which may have got on his hands as a result of shaking hands."
It is self evident that the Tribunal who were the Tribunal of fact, preferred Mr Brindle's account of what had happened to that of the Applicant and dismissed his complaint on that basis.The Applicant appeals on the basis that that was a perverse finding insofar as it relied upon the evidence of Mr Nixon who supported to some extent the account given by Mr Brindle because Mr Nixon gave contradictory evidence and in other respects was an unsatisfactory witness. A mere recital of this ground of appeal is sufficient in our judgment to indicate that what the Appellant is attempting to do is to appeal a finding of fact of the Tribunal which of course is not permissible. This Appeal Tribunal is only concerned with questions of law. The reference to inconsistencies in a witness' evidence does not in any way entitle us to conclude that the findings of fact which were so clearly made after the Industrial Tribunal and had the opportunity of seeing and hearing the witnesses were in any way perverse. It is of course open to a fact finding Tribunal to accept some parts of a witness's evidence and reject others. It is obvious that they did not find such inconsistencies as there were in Mr Nixon's evidence sufficient to say that he was a witness whose evidence should not be accepted at all. More importantly however, the case centred around the difference between the account which Mr Brindle gave of what happened and the account which Mr Smeda gave. The Tribunal preferred the evidence of Mr Brindle. There is therefore no arguable basis for an appeal to this Tribunal and this appeal must be dismissed.